DISSENTING OPINION OE
MR. JUSTICE MACLEARY.The complainant in this case, Ramón Herminio González, ■on the 17th of December, 1904, brought suit in the District Court of Aguadilla to determine his title of ownership to a house and lot located on Comercio street, in the town of Lares, and to record his title of ownership in the register of properties in accordance with article 395 of the Mortgage Law. The district attorney of that district appeared and objected to tlié proceeding on the ground that the Governor of Porto Rico had not been cited in accordance with section 93 of the Code of Civil Procedure. At the opening of the session of court on the 17th of July, 1905, the judge, in deciding the motion presented by the fiscal, rendered the following judgment :
“This court, after a careful examination of the motion presented by the fiscal, by which he urges the annulment of the judicial proceeding for the reason that the Honorable Governor of Porto .Rico was not notified; and after hearing the petitioner, Ramón Herminio González, represented by his attorney, Carlos Franco Soto, and the arguments .alleged by both; after an examination and careful consultation of .section 85 of the law of Special Proceedings, which was approved after and revives the special proceedings established in the Civil Code, the Mortgage Law and its Regulations, and in any other law, in so far as not provided for therein; after having read section 395 of the Mortgage Law and those sections of the Regulations in reference thereto, none of which sections style the petition for dominion title .a complaint but a writing; and after.hearing the allegations made *464in a petition of this sort, the judge does not render a judgment, but merely makes an order; and considering that a proceeding to obtain a title of ownership is not commenced by filing a complaint and that in this proceeding no answer is required in order to apply thereto the rules contained in the Code of Civil Procedure, as provided by section 36 of said law; after a careful examination of section 3 of the law approved March 3, 1904, in which it is provided that it is the duty of the district attorneys to prosecute in their respective districts all civil actions in which The People of Porto Rico is concerned, and perform all other duties conferred upon them by law, and commissions of the Attorney General; and after considering that in proceedings to obtain title of ownership a period of sixty days, provided for by general order, is allowed to the parties to prepare their claim; and, finally, taking into account that no issue is raised by the parties in this ease, because there is no real opposition, but only the omission of a certain procedure, and this procedure is not in force since the law of special proceedings was approved the 9th of March of this year, to take effect immediately after its enactment; it is ordered by this court that the motion of the district attorney, representing The People of Porto Rico, be dismissed.”
On the 31st of July the trial judge in the District Court of Aguadilla granted the complaint of the plaintiff herein, and entered judgment to that effect. And from this judgment the district attorney took an appeal to this court, which appeal was ratified and prosecuted by the fiscal of this court, under direction of the Attorney General.
The Chief Justice in his opinion says: “The writer has the same- opinion as the district judge of Aguadilla in regard to the decision of this case.” He then proceeds to elaborate the arguments set forth by the district judge, and to give reasons in his own words for the correctness of the judgment rendered by the court below.
I do not regard the arguments made in support of this judgment as sound or logical, and I cannot agree with the conclusion at which the majority of the court arrived in affirming the judgment of the court below.
Entertaining views at variance with my colleagues, it devolves upon me to give my reasons for the same.
*465It is claimed that this is not a suit, nor an action against The People of Porto Eico, but only an information, and for that reason does not require a summons to. be issued and served in accordance with paragraph 5, section 93, of the Code of Civil Procedure, but that proceedings may be taken and followed as provided in section 395 of the Mortgage Law.
In my view this is clearly an action affecting the title or right of possession of real estate, and The People of Porto Eico is made a party because the title to all lands in Porto Eico which are not vested in some other person, are vested in the People of Porto Eico, and if any party desires' to establish title to lands to which no written title is extant, The People of Porto Eico must be cited to make any objection which may exist to the title which the claimant may present, and for this reason . this is clearly an action against The People of Porto Eico, and under section 93, paragraph 5, the summons must be served by delivering a copy thereof to the Governor of Porto Eico.' That formality has- not been complied with in this case. Title VI of the Code of Civil Procedure now in force treats of the manner of commencing civil actions in the courts of Porto Eico. Section 89 therein provides for the issuance of a summons and what it shall contain. Section 91 sets-forth that in an action affecting the title or right of possession to real prpperty, the plaintiff at the time of filing the complaint, and the defendant at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time thereafter, may file a notice of the pendency of the action with the registrar. Section 92 provides for the service of summons, in a general way, and is followed up by the provisions of section 93, to which I have heretofore adverted.
To my mind this proceeding is clearly an action, because an action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or the protection of a right; or the redress or prevention of a *466wrong; or the punishment of a public offense. The term ‘ ‘ action” has.been defined by Mr. Bouvier, in volume 1 of his dictionary, on page 88, to be “The formal demand of one’s right from another person or party, made and insisted upon in a court of justice. In a quite common sense, action includes all the formal proceedings in á court of justice attendant upon the demand of a right made by one person or party of another in such court, including an adjudication upon the right and its enforcement or denial by the court.” In the Institutes of Justinian an action is defined as “The right of pursuing in a judicial tribunal what is due to one’s self.” (Institute 4, 6.),
The Code of Civil Procedure of Porto Bico was intended to set forth the manner of the' commencement and prosecution of all civil actions, and clearly included such proceedings as the present one, as is shown at least inferentially by every line, paragraph and section of the said Code. It is said in section 100: “The forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, are those .prescribed in this Code.” Title VIII treats of the provisional remedies in civil actions, Title. IX of the trial and judgments in civil actions, and so on throughout the Code from the beginning to the end, showing plainly the scope and purpose of said Code.
This question has been fully discussed by me in my dissenting opinion in the case of Giménez v. Brenes (ante p. 124), dated 26th of February of the present year. In the same manner, and for the same reasons the decision rendered by the court in this case must be held to be a judgment, and not a mere order. An order is defined by the Code of Civil Procedure, section 315, to be “any direction of a court or judge made or entered in writing and not included in a judgment. ’ ’ (See Code of Civil Procedure, p. 217.)
By section 188 of the Code of Civil Procedure a judgment is defined to be “a final determination of the rights of the parties in an action or proceeding.” Then nothing could be clearer than that the decision rendered by the district court in *467this case is a judgment, and no refinement of language can make it anything else.
But it is assumed in the court below, and supported in this court, that section 395 of the Mortgage Law was not modified or repealed by section 95 of the Code of Civil Procedure or any other law. It would seem hardly necessary to reiterate the arguments which I used in my dissenting opinion in the case of Giménez v. Brenes, above referred to, which tend to show that certain sections of the Mortgage Law, necessarily including section 395, have been modified or repealed by the Code of Civil Procedure, and that all such proceedings when so modified must he by appropriate actions in accordance with the last-named Code.
The claim that section 85 of the Law of Civil Procedure revives the special proceedings established in the Mortgage Law and its Regulations is also effectually disposed of, to my satisfaction at least, in. the said dissenting opinion in regard to the Mortgage Law above quoted. Section 36 of the Code of Civil Procedure is quoted as authorizing the trial court to disregard the provisions of the said code, and to hold in force the provisions of the Mortgage Law. This to my mind is clearly a distortion and an undue warping of the said section of the Code. That section is intended merely to confer upon a trial judge, or upon a judge of this court, a sound judicial discretion to proceed in accordance with law, where' the course of proceedings is not specially pointed out by the Code, but such proceeding must he adopted as appears to be most conformable to the spirit of this Code — that is to say, the Code of Civil Procedure; and where the Code of Civil Procedure especially and directly prescribes that certain proceedings shall be taken, for instance, the service of a summons, as set forth in section 93, no judge of any court has a right to disregard the provisions of the statute and follow his own inclination or his preconceived opinion of what should best be done under the circumstances. It is the duty of the courts, as has been repeatedly announced by the greatest jurists, to follow the *468laws made by the legislature, and not by judicial construction or otherwise, to make laws for themselves.
The main question in this case may be held to be one of the constitutionality of such a proceeding as that designated under section 395 of the Mortgage Law. A proceeding which authorizes a decision in regard to the rights of a party without notifying such party, in the terms prescribed by the law, is clearly to deny him his day in court, and is not due process of law,- nor is it in accordance with the law of the land, as set forth in the famous Dartmouth College case, and in many other cases, following the doctrine therein announced. Reference may be had to the very able opinion of the Supreme Court of the United States in the celebrated case of Hurtado v. California, 110 U. S., 335, 336. I have also heretofore discussed this feature of the Mortgage Law in the dissenting opinion hereinbefore referred to, and it is unnecessary to reiterate the discussion there made.
For the reasons herein given, and given more extensively i'n the dissenting opinion of which repeated mention has been made herein, I cannot concur in the judgment herein rendered, nor in the opinion on which the same is based.